Cristina Freitas, Esq. v. Department of Early Education and Care (SPR 20201053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2020 SPR20/1053 Felicia Sullivan, Esq. Department of Early Education and Care 51 Sleeper Street Boston, MA 02210 Dear Attorney Sullivan: I have received the petition of Cristina Freitas, Esq. on behalf of Debbie Freitas, Esq., both of Freitas & Freitas, LLP, appealing the response of the Department of Early Education and Care (Department/EEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 29, 2020, Attorney Debbie Freitas requested the following records: 1. Every application submitted (and approval status) to operate an Emergency Residential Program pursuant to the executive order; 2. The name, town, and approved bed number of each facility approved to operate an Emergency Residential Program pursuant to the executive order; 3. The COVID-19 status of all residents and staff at each program pursuant to the required reporting in the EEC temporary policies. The Department provided a response on May 16, 2020, providing certain responsive records and indicating it did not possess records regarding other portions of the request. Unsatisfied with the Office’s response, Attorney Cristina Freitas petitioned this office and this appeal, SPR20/1053, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Felicia Sullivan Esq. SPR20/1053 Page 2 July 14, 2020 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s May 16th response In the Department’s May 16, 2020 response, the Department provided certain records responsive to categories 1, 2, and 3 of the request. With respect to category 3, the Department provided certain data and indicated that “. . . please be advised that this data is what EEC’s temporary policies require programs to report, and EEC does not require the collection of ‘COVID-19 status of all residents and Staff’. EEC suggests that you request this data from the Department of Public Health and/or the Command Center.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). Conclusion Whereas the Department has provided the data in its possession, and has no duty to create records responsive to this request, I will now consider this administrative appeal closed. The parties are encouraged to communicate further to determine whether alternative records may exist. Sincerely, Rebecca S. Murray Supervisor of Records cc: Cristina Freitas, Esq.